PEOPLE v. GARDNER (1959)

The defendant, charged with having in his possession a preparation of heroin, was tried before the judge, sitting without a jury, and found guilty. On May 16, 1958, the defendant filed his notice of appeal ‘from the order and judgment * * * made and entered on the 7th of May, 1958, denying defendant's Motion for New Trial and adjudging defendant guilty as charged, and sentencing defendant to the State Prison * * *.’ This we interpret as an appeal: (1) from the action of the trial judge, taken on April 2, finding the defendant guilty as charged; (2) from the order denying his motion for a new trial; and (3) from the final judgment of conviction. The latter two did take place on May 7, and are made appealable by section 1237 of the Penal Code. The first, if appealable, was taken too late, as measured by the provisions of Rule 31, Rules on Appeal for the Supreme Court and District Courts of Appeal. It is not, however, appealable (Section 1237, Penal Code; People v. Pastrana, 1955, 136 Cal.App.2d 358, 359, 288 P.2d 568, 569.) and so we are dismissing it, while affirming the other two matters appealed from.

A police officer testified that he and his police officer partner had been confidentially informed by one, possibly more, persons, whose information had proved reliable during a three or four year period, that one Lummie and the defendant were using heroin in a house owned by Lummie. As the two officers walked up along side the house, the witness heard some one running inside. He, then, went to the back door, where the defendant shortly emerged, saw the witness and retreated back in the house, pursued by the witness. The defendant had a package about the size of a fist in his hand. In the struggle that followed the witness' taking hold of the defendant, they reached the door of the living room, where the package that had been in defendant's hand, sailed through the air to the middle of the floor, whence it was retrieved by the partner of the witness.

The package thus obtained contained several envelopes of a powder, testified by one stipulated to be an expert chemist to contain the narcotic known as heroin.

From the facts narrated, it appears that the arrest was not made without probable cause, as measured by People v. Fischer, 1957, 49 Cal.2d 442, 446, 317 P.2d 967, 970, and there was no unreasonable search and seizure. People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6, 9. The informer was not a party to or witness of any of the events; he but pointed the finger of suspicion at the defendant and at the place where he was found. He, then, was but a ‘mere informer’ whose identity it was not necessary to reveal to the defendant. People v. McShann, 1958, 50 Cal.2d 802, 808, 330 P.2d 33, 36.

A third exhibit, also containing heroin, was introduced. This was discovered in the rectum of the defendant, from where it was removed by a medical nurse at the jail to which the defendant was taken. On this appeal we need not determine whether this invasion of defendant's person rendered the evidence recovered incompetent, for without it the result would have been the same; defendant's guilt was amply proved by other evidence.

The order denying the defendant a new trial, and the judgment of conviction, are both affirmed. The attempted appeal from the order or judgment adjudging the defendant guilty is dismissed.

BISHOP, Justice pro tem.

PARKER WOOD, P. J., and LILLIE, J., concur.